This is Legal-mail no. 2017-10 prepared for interested HR professionals trying to deal with the complex American employment laws.

CONTENTS:

- REPEAL? REPAIR? REPLACE? NOT FOR NOW.

- EEOC/DOJ TAKE OPPOSITE VIEWS IN SEXUAL ORIENTATION DISPUTE

- DOL SURVEY ON OVERTIME RULES ASKS SOME INTERESTING QUESTIONS

- TO FIRE OR NOT TO FIRE?

- EMPLOYERS SHOULD READ EEOC HARASSMENT RISK FACTOR CHARTS

REPEAL? REPAIR? REPLACE? NOT FOR NOW? In July of 2017, Congressional Republicans and the new Trump administration crashed and burned in the Senate in their efforts to repeal and replace the Affordable Care Act (ACA). News reports indicate that the Senate, for now, is moving on to other issues. What remains to be seen is whether other efforts to repeal/replace will surface or whether some sort of consensus can be reached on making fixes to the existing law. For now, the ACA remains the law of the land. Here is an article from SHRM that well summarizes the current circumstances: https://www.shrm.org/ResourcesAndTools/hr-topics/benefits/Pages/in-focus-senate-ACA-repeal-fail.aspx. Stay tuned for more developments.

EEOC/DOJ TAKE OPPOSITE VIEWS IN SEXUAL ORIENTATION DISPUTE: The United States Equal Employment Opportunity Commission (EEOC) and the United States Department of Justice (DOJ), two of the key federal agencies charged with national employment law compliance, are taking opposite views on the question of whether current law prohibits job discrimination on the basis of sexual orientation. The case is pending in the Second Circuit Court of Appeals, which covers the states of Connecticut, New York, and Vermont. EEOC says the existing law prohibiting sex discrimination includes sexual orientation, DOJ says it does not. DOJ’s brief even slaps down the EEOC with this comment: “Although the Equal Employment Opportunity Commission (EEOC) enforces Title VII against private employers ... the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.” Dozens of national companies, such as Google, Microsoft and Viacom, have agreed with the EEOC’s view and urged the court to provide the protection. The case likely will be resolved sometime in the fall or winter of 2017/2018.

DOL SURVEY ON OVERTIME RULES ASKS SOME INTERESTING QUESTIONS: The United States Department of Labor (DOL) is requesting information regarding possible changes to the salary thresholds for exemptions to the federal Fair Labor Standards Act (FLSA). The survey asks some interesting and complex questions, including the possibility of having multiple levels of salary thresholds which are adjusted based on the cost of living in different parts of the country. DOL also asked if exemption salary thresholds should be set by employer size or vary by state or other geographical factors and whether the set thresholds should be automatically updated based on some formula. Employers have sixty days, i.e. until about September 25, 2017, to provide comments and information. More information about the request for information (RFI), and instructions on how to provide comments, are available here: https://www.dol.gov/newsroom/releases/opa/opa20170725.

TO FIRE OR NOT TO FIRE? Portland-based employment lawyer and management consultant Jathan Janove (formerly of Utah) recently published, on his blog, an interesting interview with longtime employment and labor law professor Ross Runkel. The interview addressed when and how employers should fire employees. It contains many tidbits of wisdom, including the following: (1) “Inconsistency triggers a lot of discharge litigation,” (2) “Don't let problems drag on without taking corrective action,” and (3) “Be clear as to what the expectations are. Huge employee handbooks might be pretty, but be sure employees know the ‘short list’ of key expectations.” For the full interview, see: https://www.businessmanagementdaily.com/49344/to-fire-or-not-to-fire-how-to-fire-these-are-the-questions-mdash-interview-with-professor-ross-runkel.

EMPLOYERS SHOULD READ EEOC HARASSMENT RISK FACTOR CHARTS: Over a year ago, in June of 2016, the EEOC released a comprehensive report on harassment in the workplace. The EEOC recently re-circulated (by email) a portion of that report consisting of various charts identifying risk factors for harassment and possible employer strategies to reduce the risks. For example, for the risk factor of a “homogenous workforce,” the EEOC charts suggest employers can reduce harassment risks by taking steps to: “Increase diversity at all levels of the workforce, with particular attention to work groups with low diversity. Pay attention to relations among and within work groups.” In other words, the charts provide some good practical advice to minimize legal risks in workplace situations where claims commonly arise. Employers should read them. The full charts are available here: https://www.eeoc.gov/eeoc/task_force/harassment/risk-factors.cfm.

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator. He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers. HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.